' This revision petition is directed against an order, dated 28th of July, . 1983 recorded by the Sub- Judge, Mirpur, whereby amendment of plaint was allowed.
2. Muhammad Munsif and Ghaus Muhammad, petitioners purchased the suit land in equal share.
The sale was pre-empted by Jan Muhammad and Nek Muhammad, on the ground of their relationship with the vendor and as co-sharer in the suit land. The plaintiffs impleaded the vendees as party and asked for decree for possession by pre-emption in respect of the entire land purchased by the vendees. In written statement, the defendant-petitioners sought dismissal of the suit on the principle of partial pre-emption, as the plaint was silent to show cause of action and claim of relief against Ghaus Muhammad, vendee. On pointing out the defect in the pleadings of the plaintiffs, they moved an application for amendment in the plaint, in order to introduce cause of action against second vendee. This application was allowed by the trial Court as in its opinion, the proposed amendment tantamount to mere rectification of clerical mistake.
3. In the pleadings of plaintiffs, both the vendees were impleaded party alongwith the vendor. But the prior right of purchase was asserted against single vendee and relief was also claimed against him. On discovery of the defect, amendment was sought on the plea that omission of cause of action against the second vendee was the result of clerical mistake. It was pleaded that rectification of clerical mistake was not fatal in the sense that it neither changed the nature of the suit nor introduced a new cause of action. It appears that the learned Sub-Judge was impressed by the explanation advanced by the plaintiff-respondents, as a result, the proposed amendment was allowed conveniently.
4. Order VI, rule 2, C. P. C. Provides that every pleading shall contain statement in concise form of the material facts on which party pleading, relies for his claim or defence and the material facts were to be divided into paragraphs. The intention of the legislature was that all material facts on which plaintiff's cause of action or defendant's defence depended, were to be introduced in the pleadings. It was, therefore, essential that all those facts which were necessary to establish the existence of cause of action or defence, were required to be introduced in the pleadings. This was so, as under Order VII, rule 11 of the Code, it was enjoined upon the Court to reject the plaint where cause of action was not disclosed. The aforesaid position leads to an inference that plaint was entertainable only when, among others, it disclosed a cause oil action in favour of plaintiff and against defendant. In the present case, despite the fact that both the vendees were arrayed as defendants, the plaintiff failed to disclose cause of action against second vendee. The Abvious result of such an omission was that there was no suit against the second vendee on the date of institution or till such time when plaintiffs were permitted by the Court to introduce cause of action against second vendee.
5. As the proposition in hand confines to amendment of the plaint, it is, therefore, necessary to construe the provisions of Order VI, rule 17, C. P. C. To settle controversy in true spirit of law. Rule 17 contemplates that Court may, at any stage of proceedings, allow either party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. A study of the Rule discloses that permission for amendment of the pleadings was purely a discretion of the Court. It was for this reason that discretion allowed by the Rule was exercised liberally to determine the real question in controversy between the parties. The provisions were more allied and akin, to the rule of, justice and equity. Therefore, it was insisted that wide discretion allowed under the Rule was to be exercised according to judicial principles and not in arbitrary, vague or fanciful manner so as to cause injustice to the opposite side. The object of the provision, as it was evident from the language of the Rule, was to facilitate the task of dispensation of justice. The rule of justice, on the other hand, was to be enforced without detriment to the cause of either party. Precisely, the object of Rule was to hold the scale of justice evenly. While applying the principle in allowing amendments or its refusal, Courts have always kept in view such limitations and seldom allowed amendments where : --
(i) the amendment resulted in the change of nature of suit ; or
(ii) cause of action was changed ;.Or
(iii) an additional ground for cause of action was alleged ; or
(iv) a new cause of action was sought to be introduced ; or
(v) the proposed amendment deprived the opposite party, of a right already accrued to it by lapse of time.
' In the present case, plaintiff-respondents sought to disclose cause of action against second vendee by alteration and addition of digit 2 for 1 and the word 'defendants, for 'defendant', by introduction of plural number of vendees instead of singular. The alteration was sought to introduced in the main paragraphs of plaint as well as in the column of relief.
6. Qazi Abdul Ghafoor, the learned counsel for the plaintiff-respondents, argued that the proposed amendment was in the nature of rectification of a clerical mistake resulted by negligence of counsel who drafted the plaint and not by carelessness of the plaintiffs. It was, urged that correction of clerical mistake was seldom refused, as the amendment neither changed the cause of action nor nature of suit nor it introduced a new ground for relief. He cited AIR 1950 Ajmer 52, PLJ 1980 Pesh. 34 (?) and PLD 1972 Azad 3 K 22, in support of his claim. The contentions of the learned counsel were controverted by Ch. Munsif Dad, the learned counsel appearing for the petitioners, who argued that it was not a case of mere rectification of clerical mistake, rather it was a case of introduction of cause of action, after lapse of statutory period, in preemption case, was not allowed at time when a valid right had already accrued to second vendee.
7. As discussed earlier, a study of the plaint reflects that plaintiffs omitted to assert their claim of pre-emption against second vendee, not only in the main paragraphs of the plaint but even in the column of relief, they failed to advance their claim for decree against the second vendee. In the circumstances, it was difficult for calling it a case of omission or inadvertence or clerical mistake, as alleged by the learned counsel for the respondents. It was well-known that civil law is a law of omission and commission. An omission or commission by parties is not ignored lightly as the same goes to the root of the case. On this view of the matter, the alleged omission in the suit and particularly in the column of relief, cannot be brushed aside. It has gained more importance by virtue of efflux of time. This aspect of the proposition shall be examined next.
8. The consensus is that a right of pre-emption is an artificial and a piratical right. Superior Courts of the Sub-Continent have always insisted on strict application and interpretation of the rules of preemption. This Court has always adhered to the aforesaid policy. This is so, as no equity is attached with a right of pre-emption. Applying the principle to the present case, the proposed amendment cannot be allowed lightly.
9. It is undenied, as pointed out by the learned counsel for the petitioners, that the application for amendment was moved after the expiry of statutory period, fixed for the pre-emption cases. The introduction of cause of action against second vendee, even if considered from the date of application, would prima facie, hit the suit by limitation against such vendee. The consensus was that an amendment was not allowed where on introduction of a cause of action, or by addition of a party, or addition of property, the suit was shown to be barred by time. Thus, despite the 'fact the plaintiffs wanted to make alteration so as to show that the suit was preferred against both the vendees and that relief was sought jointly against them, such an amendment was not permissible.
It was not a case of clerical mistake as the so-called clerical mistake, in fact, shows that suit was preferred against single vendee. At this stage, if such an omission is allowed to be removed by introduction of claim against second vendee, though apparently, it may be shown as rectification of clerical mistake, in letter and spirit it tantamounts to introduction of claim against second vendee. In an identical proposition, Calcutta High Court refused to allow amendment. The view was expressed in AIR 1956 Cal. 630. The relevant observation is reproduced below:- "(13) Now, it is quite true that Order VI, rule 17, Civil Procedure Code provides that the Court may allow an amendment of the pleadings 'at any stage of the proceedings'. If full effect were to be given to the liberal meaning of that language, questions of limitation would obviously be utterly irrelevant ; but the Courts have imposed a qualification on the words of the Rule on grounds of justice and equity. The object of Order VI, rule' 17 is to aid justice by making it possible for parties, who had not framed their pleadings in a proper form, to correct the mistake or supply the omissions with a view to bringing to the notice of the Court the real question in controversy in the suit. The Courts have said that a provision intended to advance justice cannot itself be so applied as to cause injustice to the other party and that one of the cases where injustice would be caused is where an amendment, if allowed, would take away from a party a right already accrued to it by lapse of time. In such cases, the Court will not allow an amendment. This rule was laid down long ago in many cases of which, `Weldon v. Neal', (1887) 19 Q. B. D. 394 (C), is always referred to as the root authority in the subject, but its scope has, to a certain extent, been modified by two decisions of the Privy Council. The Privy Council has held in "Muhammad Zahoor All Khan v. Mst. Thakooranee Rutta Koer' 11 Moo Ind. APP 468: (D) and Charandas v. Amir Khan', 47 Ind. APP 255 : AIR 1921 P. C. 50 (AIR V 8) (E), that although as a rule the power to allow an amendment should not be exercised where its effect would be to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases where such considerations are outweighed by the special circumstances of the case. Such circumstances, however, will have to be very exceptional indeed, if by an amendment a plaintiff is to be allowed to convert what was a bad plaint into a good one or to proposed against a party against whom he could not have proceeded if he brought a suit for the first time on the date he asked for the amendment or when the amendment was allowed."
' The aforesaid view was supported by various cases reported in PLD 1948 P C 73, AIR 1948 P C 100, AIR 1933 Bom. 450, PLD 1942 Sind 104, AIR. 1936 Mad. 99 and AIR 1957 J& K 12. The attention of the Court was invited to the case of Muhammad Sharif (1). This was a pre-emption case. The name of father of the vendee, in that case, was recorded incorrectly in the plaint. On pointing out the defect by the vendee, an application for correction was moved and the same was allowed by the learned Judge. In that case, the learned Chief Justice who recorded the judgment, observed that amendment should not be allowed when a party tried to put forth a new case or new relief, or change in the cause of action or to take away a legal right already accrued to a party by lapse of time. In that case, when a defendant was already arrayed and the cause of action was disclosed against him, mere correction of the name of his father, was not considered introduction of cause of action, or assertion of claim after the lapse of statutory period. The aforesaid case as relied upon by the learned counsel for the plaintiff-respondents, in fact, supports the opposite side. The other cases referred to by the learned counsel for the plaintiffs, are also not applicable to the proposition in hand, as in those cases, the rectification of clerical mistake had nothing to do with the introduction of cause of action and relief sought to be introduced against the opposite party. Thus, the proposition in 'hand, was quite distinguishable from the facts constituting the proposition in the cases cited at the bar.
10. An argument was addressed at the bar to dismiss the suit as a whole, by holding it case of partial pre-emption, The argument does not impress for the reason as the trial Court- has not applied its mind to this aspect of the case. Unless an opinion was expressed in the light of the said objection, it was premature to give a definite finding on the point.
(1) PLD 1972 Azad'J K 22
11. As a result of aforesaid deliberations, objection raised by the petitioners is sustained. The impugned order is set aside and application for amendment is disallowed. The trial Court shall be free to dispose of the case in the light of the aforesaid observations including the objection of partial pre-emption. In view of the peculiar points involved in the case, parties are left to bear their on costs.